Zimmerman v. Zimmerman

165 Wis. 146 | Wis. | 1917

Marshall, J.

It is conceded, as the fact is, that unless Mrs. Zimmerman delivered the deed to Mr. Van TIecke, or Mr. Braun, intending to absolutely part with control thereof so it would take effect, in prcssenti, as her deed, but enjoyment of the property by the grantee be postponed until her death and his then coming into manual possession of ,the paper, it was of mere testamentary character and void. While a deed may be delivered by the grantor to a third person for the benefit of the grantee and possession and enjoyment by him of the property involved be postponed until the happening of some specified event, such as the death of the grantor, it is essential that the latter should absolutely part with control of the paper and that it should take effect as his deed when so delivered. Albright v. Albright, 70 Wis. 528, 36 N. W. 254; Kittoe v. Willey, 121 Wis. 548, 99 N. W. 337; Williams v. Daubner, 103 Wis. 521, 79 N. W. 748; Ward v. Russell, 121 Wis. 77, 98 N. W. 939; Dickson v. Bills, 144 Wis. 171, 128 N. W. 868; Campbell v. Thomas, 42 Wis. 437.

This court said in Prutsman v. Baker, 30 Wis. 644, “An essential characteristic and indispensable feature of every delivery, whether absolute or conditional, is, that there must be a parting with the possession and of the power and control over the deed by the grantor for the benefit of the grantee, at the time of delivery/’ and in Williams v. Daubner, supra, “The principle emphasized is that the delivery of the deed not being absolute, or conditional so as to be beyond the grantor’s control, and the depositary being a mere agent, the instrument is revocable at ,any time before the grantor’s death, and is therefore a nullity.”

The trial court determined this case with a clear understanding of the law applicable thereto. The only question now presented is whether the findings of fact against intention to make delivery so as to pass title are against the clear preponderance of the evidence. The circuit judge, as indicated by a carefully written opinion, weighed the evidence in all its aspects and concluded that Mrs. Zimmerman intended to retain control of the deed until her death. There are many circumstances referred to in the findings tending to sustain that view. She derived her claim of title by a deed deposited by her husband with the Mr. Braun who advised her in the particular transaction, and delivered to her after the grantor’s death, he, apparently, retaining control of it until that event. She purposed, as the circumstances characterizing the making and depositing of the deed in question indicated, having it dealt with in the same way. • She said to Mr. Van Hecke, as he testified, that she did not wish the deed to take effect until she died, showing that she did not have in mind a present parting with title and postponement of enjoyment by the grantee until her decease. The deed expressly provided that it should not take effect until she died. When the particular condition which moved her to make the deed no longer existed, she attempted to regain possession of it and supposed she had succeeded. Subsequently she made a will, entirely ignoring the deed. Her conduct, from first to last, rather indicates that she did not intend to part with control of the deed when she left it with Mr. Braun or Mr. Van Hecke. The fact that the latter got a different idea from the transaction is 'not controlling. The conduct of the grantee from the time the deed was made until some time after the will was admitted to probate, indicates that he did not suppose she had parted with control of the deed. He had notice of the probate proceedings and contents of the will and did not raise any question in respect to the matters until a late day.

The circumstances referred to and others shown by the evidence support the view of the trial court that Mrs. Zimmerman did not part with possession of the deed with any thought of presently making the same a conveyance to the grantee named therein; that she purposed retaining competency to make some other disposition of her property in case she should desire to do so.

In view of what has been said, it is considered by the court that the record does not warrant holding that the findings of fact are contrary to the clear preponderance of the evidence. The judgment must therefore be affirmed.

By the Court. — The judgment is affirmed.